The opinion of the court was delivered by: Paula J. Hepner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Court Attorney Referee to whom this case was referred,*fn1 submitted a Report to the undersigned on January 23, 2009 recommending her recusal because she "inadvertently received information" during an "ex parte scheduling communication" with an unidentified person which "might affect her impartiality." In her Report she did not reveal the substance of the information "because it is privileged pursuant to CPLR 4503." She relied upon Opinion 07-192 of the Advisory Committee on Judicial Ethics for this course of action. This ethics opinion addressed the question of whether an ex parte communication should be disclosed to the attorneys and parties involved in a case.*fn2 This opinion cannot be considered as authority for the Referee's position that "the substance of the information received ex parte may not be revealed" to the judge charged with making a decision to confirm or reject her request "because it is privileged." Without knowing the content of the ex parte communication in this matter and how it would affect her ability to be impartial, the Court found the Referee's report insufficient on its face and entered an order on January 28, 2009 denying recusal.
Relying on Opinions 08-54 and 98-144 of the Advisory Committee, which hold that disclosing ex parte communications is "generally advisable" but "is not an absolute requirement without regard for "the content, context and surrounding circumstances of a particular communication," and Opinion 08-23 of the Advisory Committee, which discusses the factors to be considered in deciding whether to disclose the contents of an ex parte communication,*fn3 the Court required that any supplemental report from the Referee contain the substantive contents of the ex parte communication. The court's order also directed the Referee to redact that information from the papers served on counsel, in order to preserve the Court's ability to maintain the confidentiality of the disclosure and to preserve its ability to seal the record and withhold the contents of the ex parte communication from the parties and their attorneys should that become necessary.
A supplemental Report and Recommendation was submitted by the Referee to the undersigned on January 30, 2009.*fn4 The Referee stated that the father's attorney called to ask her about the date the case was scheduled and during this conversation the attorney mentioned that she had filed an order to show cause to be relieved. According to the Referee, " immediately thereafter," the father's attorney uttered the three words comprising the ex parte communication at issue here. No further details about the circumstances, context or substance of the ex parte communication were provided in the Report. The Referee commented that when she reviewed the attorney's request to be relieved, she noticed this was not included in counsel's affirmation of reasons supporting her request to be relieved.*fn5 From counsel's statement that "she is sensitive to her obligation not to disclose privileged information which might be prejudicial to Petitioner's case," The Referee implies that this is a reference to the contents of the ex parte communication at issue. The Court does not assume, as the Referee does, that this sentence encompasses the ex parte communication the Petitioner allegedly made to his attorney. The Court reads this sentence as an indication that Petitioner's counsel is aware of her ethical obligation when making a "disclosure adverse to [her] client's interest," that it "should be no greater than the lawyer reasonably believes necessary to the purpose."*fn6 Had the Petitioner done what was alleged in the ex parte communication, there is no reason for counsel to have omitted it from her list of reasons since she could not be sanctioned for having acted contrary to her client's interests by disclosing it.*fn7
Preliminarily, two determinations must be made before reaching the merits of the Referee's recusal request. First, a determination must be made about whether the information disclosed by Petitioner's counsel constitutes, as the Referee contends, a "confidential communication between an attorney and her client which is protected from disclosure under CPLR 4503."*fn8 Second, a determination must be made about whether the ex parte communication, even if not protected, may be revealed under the criteria in Opinion 08-23.
The Lawyer's Code of Professional Responsibility provides that "both the fiduciary relationship existing between lawyer and client and the proper function of the legal system require the preservation by the lawyer of confidences and secrets" of his or her client.*fn9 The disciplinary rules define a "confidence" as "information protected by the attorney-client privilege under applicable law," and a "secret" as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."*fn10 In People v DePallo (96 NY2d 437 ) the Court of Appeals held that "the intent to commit a crime is not a protected confidence or secret." Because the information disclosed in counsel's ex parte communication with the Referee does not reveal a confidence or a secret, this ex parte communication enjoys no privilege under CPLR 4503. Inasmuch as counsel's ex parte communication to the Referee sets forth no specific allegations of fact and simply expresses a conclusion drawn from something her client did or said, it is difficult to conclude that disclosing the information would pose a risk of dangerous consequences to an innocent individual. Even if it did, disclosing the contents of the ex parte communication to counsel and the parties would appear to be consistent with Opinion 5-78 for the protection and safety of the attorney.*fn11 Moreover, since the ex parte communication is the foundation for the Referee's recusal, disclosure of its contents is essential to the analysis of her request to be relieved.
Rule 4301 of the New York Civil Practice Law & Rules provides that "a referee to determine an issue or to perform an act shall have all the powers of a court in performing a like function, but he shall have no power to relieve himself of his duties." It would appear from the case law, that the same standard of evidence and burden of proof, which apply to recusal of a judge, apply equally to a referee.*fn12 Thus, in the absence of "any of the statutory disqualifications set forth in Judiciary Law §14"*fn13 or "proof of bias or prejudice" (Schreiber-Cross v State, 31 AD3d 425 [2d Dept 2006]) or "personal knowledge of disputed evidentiary facts concerning the proceeding"*fn14 the judge or referee "is the sole arbiter of its recusal" (People v Moreno, 70 NY2d 403, 404 . The undersigned has found no legislative history to explain this anomaly. Consequently, courts must decide whether a referee's request for recusal should be granted.
The ex parte communication upon which the Referee based her request for recusal is the statement from Petitioner's attorney, "He threatened me." The Referee finds this ex parte communication relevant to both the attorney's application to be relieved and the Petitioner's request for visitation. In her report she explains that "if an attorney is in danger due to a threat by a client" and if "the petitioner made a threat against his attorney," this "could be an indication that petitioner has violent tendencies" which "would have a negative bearing on petitioner's request for expanded visitation." Because of this, the Referee reports that she "cannot disregard this information in making decisions in this matter."
In analyzing the Referee's attempt to use this ex parte communication as a justification to be relieved of her duties in this case, three assumptions are immediately apparent. First, without any factual support for her conclusion, the Referee characterizes the disclosure as "inadvertent" when she might equally have questioned it as a calculated strategy to secure her removal from the case,*fn15 particularly in light of this Court's prior decision denying Petitioner's Order to Show Cause to recuse her.*fn16 Second, having knowledge of only a vague and unparticularized statement, the Referee speculates that the attorney could be "in danger due to a threat by [her] client." Without knowing more about the Petitioner's exact words or actions, his tone and behavior at the time, as well as the context surrounding his words or actions, any independent, objective assessment of the seriousness of the Petitioner's conduct or the reasonableness of counsel's reaction to it cannot be made. Third, without any factual basis in the record, the Referee hypothesizes from counsel's nebulous remark that the Petitioner could have "violent tendencies." Having presided over this case since its inception in 2002 and having seen and observed the parties over innumerable court appearances between 2002 and the present,*fn17 for the Referee to conjecture that the Petitioner "may have violent tendencies" because of this statement is difficult to comprehend.
During litigation, it is all too common an occurrence for parties to act out in agitated, aggressive, insubordinate, hostile and disruptive ways when, for example, rulings do not go in their favor, they become frustrated with the lengthy process, they misapprehend the role of their lawyer, and recognize their inability to control the proceedings. When litigants resort to making threats to regain a position of power, these threats can span a range from the perilous ("I'll kill you") to the persistently annoying harassments ("I'm going to report you to the disciplinary committee and ruin your career;" "I'll make your life miserable;" "I'll have you on Fox 5 tonight."). What some people perceive as a serious threat of harm others may dismiss as an excited utterance or an intemperate outburst stemming from a lack of impulse control. Judges are routinely called upon to make these distinctions when deciding attorneys' applications to be relieved from representing their clients or when making decisions about whether to grant, continue or modify interim visitation or custody applications.
There is a voluminous body of case law recognizing that a judge, presiding over a bench trial, " 'by reasons of...learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and making an objective determination' based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision" (People v Moreno, 70 NY2d at 407, quoting People v Brown, 24 NY2d 168 ); People v Grier, 273 AD2d 403 [2d Dept 2000]). Judges are "presumed to have disregarded inadmissible evidence" (People v Whitehead, 305 286 [1st Dept 2003]; People v Khuu, 293 AD2d 424 [1st Dept 2002]) and to have "considered only competent evidence in reaching his [or her] verdict"(People v Falu, 138 AD2d 510 [2d Dept 1988]; People v Bishop, 111 AD2d 398 [2d Dept 1985]).*fn18 Even the Court of Appeals has recognized that, "[i]n our own deliberations in this court, we are called upon to objectively consider questions of law and reverse convictions even though upon reading the entire record we are convinced of the defendant's guilt" (People v Brown, 24 NY2d at 173). Critical to performing the judicial function is the capability to distinguish issues and make objective determinations "despite having acquired information of guilt or innocence inadmissible before a fact finder" (People v Dones, 250 AD2d 381 [1st Dept 1998] and the competence to base decisions "upon appropriate legal criteria" (People v Lamphier, 302 AD2d 864 [4th Dept 2003]).
Unless the Referee knows something more about the circumstances and substance of the alleged threat than is revealed in her Report, there is nothing unusual, exceptional or extraordinary about the nature or the content of the particular statement at issue in this case and nothing to distinguish it from the multitude of times this particular situation can arise in the course of a judicial career. The speculations the Referee makes about the contents of the alleged threat, to bolster her request to be relieved, are unwarranted on the facts in the record and make transparent the motivation behind her request.*fn19 On this ...